Amended New York WARN Regulations Now in Effect
The New York State Department of Labor has published amended WARN regulations that provide guidance on a number of topics, including treatment of remote workers, applicability of exemptions, pay in lieu of notice, calculating back pay, and new requirements for notices.
Earlier this year, the New York State Department of Labor ("NYS DOL") published proposed amendments to its regulations interpreting the New York Worker Adjustment and Retraining Notification Act ("NY WARN") and requested comments by May 30, 2023. With little fanfare, on June 21, 2023, the NYS DOL published the new regulations.
According to the NYS DOL, a major purpose of the new regulations was to "address the post-pandemic employment climate." Several of the new provisions appear designed to address exactly that. For example, the new regulations state that employees who work remotely but are "based" at an employment site count toward determining employer coverage. The NYS DOL also clarified that a public health emergency, such as a pandemic, may qualify for the unforeseeable business circumstances exception, and clarified what constitutes a temporary layoff. Other notable changes include:
- Exceptions. The statute enumerates certain exceptions to the requirement of providing 90 days' notice of a mass layoff or plant closure. Under the amended regulations, to rely on one of these exceptions, an employer must receive a determination from the Commissioner that the employer has met all the elements of the exception.
- Faltering Company Exception. The faltering company exception now applies only to plant closings and not mass layoffs.
- New Requirements for Notices. The NYS DOL now requires additional information in notices that was not previously required, including but not limited to the number of full and part-time employees in the state and at the impacted site.
- New Guidance on Pay in Lieu of Notice. The prior regulations state that if an employer fails to provide 90 days' notice, the employer can offset its WARN liability by paying wages and benefits for the period of the WARN violation. See 12 NYCRR § 921-7.3 (c)(1), (c)(3). The amendments do not materially alter those provisions, and thus it appears that employers can continue to offset WARN liability using this method. The amendments add a new provision titled "Payments in Lieu of Notice of Separation or Layoff," see 12 NYCRR § 921-7.3(g), that provides an additional opportunity for employers to offset WARN liability if they maintain "an employment agreement or a uniformly applied company policy" that provides for a notice period. Even if employers do not comply with these new requirements, they should be able to offset WARN liability using the methods available under the pre-amendment regulations. Given that the recent amendments have not yet been interpreted by the courts, and given the complexities inherent in the New York WARN scheme, we recommend that employers consult with counsel on the impact of these changes if they are contemplating pay in lieu of notice.
- Calculating Back Pay. The regulations provide additional detail on how to calculate back pay for hourly and non-hourly employees in situations where notice is not provided and employees are owed 60 days of back wages under the statute.
Employers who are planning workplace actions that may impact New York employees should seek legal counsel to ensure that they are compliant with these new regulations.
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